UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE OF IMMIGRATION REVIEW IMMIGRATION COURT SAN FRANCISCO, CALIFORNIA

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1 1 1 1 Jeremiah Johnson Johnson & McDermed, LLP 00 Montgomery Street, Suite 0 San Francisco, California Tel...0 Fax...0 jeremiah@jmcdlaw.com Counsel for Respondent DETAINED UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE OF IMMIGRATION REVIEW IMMIGRATION COURT SAN FRANCISCO, CALIFORNIA ) In the Matter of: ) File No. A ) DOE, John, ) Next Scheduled Hearing: ) Respondent, ) ) Before: In Removal Proceedings. ) ) ) RESPONDENT S PRE HEARING BRIEF - 1

2 1 1 1 I. INTRODUCTION Respondent, Mr. John Doe, through counsel, respectfully submits Respondent s prehearing brief in support of his application for a cancellation of removal for certain permanent residents pursuant to INA 0A(a). Respondent has lived in the United States as a lawful permanent resident for years. Furthermore, Mr. Doe demonstrates strong family ties to the United States, a solid work ethic and a tangible and sincere plan for rehabilitation that warrant this Court s exercise of favorable discretion. Because Mr. Doe s positive equities outweigh his adverse factors, this Court should grant Respondent s request for cancellation of removal for certain permanent residents under INA 0A(a). II. BRIEF STATEMENT OF FACTS AND CASE Mr. Doe is a citizen and native of Mexico who was accorded lawful permanent resident status in the United States on March,. Exh. A. Mr. Doe has strong family ties to the United States and has a long history of work. Tab D-E. Mr. Doe has suffered several convictions including multiple driving under the influence offenses. On August, 1 Mr. Doe was returning to the United States from a brief trip abroad. Subsequently, the Department of Homeland Security issued a Notice to Appear alleging Mr. Doe is removable for having been convicted of two or more offenses for which the aggregate sentences to confinement actually imposed were five years or more. See INA (a)()(b). III. ARGUMENT A. Respondent Is Statutorily Eligible And Warrants A Grant Of A Waiver Of Removal Under INA 0A(a). -

3 1 1 1 This Court should grant the application for cancellation of removal for certain permanent residents under INA 0A(a) because of Mr. Doe s strong family ties with the United States; evidence of hardship to Respondent and his family if removal occurs; history of employment; and sincere evidence of rehabilitation. On March, Mr. Doe was accorded lawful permanent resident status in the United States. Exh. 1. Mr. Doe did not suffer any convictions for years after having been accorded lawful permanent resident status. Moreover, Mr. Doe has not been convicted of any aggravated felony. Therefore, Mr. Doe is eligible for cancellation of removal for certain lawful permanent residents. See INA 0A(a). B. Because Respondent s Positive Equities Outweigh Any Adverse Factors, A Waiver Of Removal Should Be Granted As A Matter Of Discretion. In addition to demonstrating statutory eligibility, an applicant for cancellation of removal bears the burden of showing that relief is warranted in the exercise of discretion. See INA 0A(a); see also Matter of C-V-T-, I. & N. Dec., - (BIA ). The Board has held that the general standards developed for the exercise of discretion under INA (c) are also applicable to the exercise of discretion under INA 0A(a). Matter of C-V-T-, supra at ; see also Matter of Sotelo-Sotelo, I. & N. Dec. 1, (BIA 01) (affirming Matter of C-V-T- and emphasizing that the discretionary determination will depend in each case on the nature and circumstances of the ground of [removability] sought waived ). In keeping with the standards developed under former Section (c) of the Act, the Court should consider the record as a whole and balance the adverse factors evidencing the alien s undesirability as a permanent resident with the social and humane considerations presented in his favor to determine whether a -

4 1 1 1 grant of relief would be in the best interest of this country. Matter of C-V-T-, supra at ; Matter of Edwards, I. & N. Dec. 1, (BIA 0); Matter of Marin, I. & N. Dec. 1, (BIA ). There is no threshold requirement that the applicant show unusual or outstanding equities; rather the Court must weigh the favorable and adverse factors to balance the totality of the evidence before reaching a conclusion as to whether the applicant warrants a grant of cancellation of removal in the exercise of discretion. Matter of Sotelo-Sotelo, supra at (quoting Matter of C-V-T-, supra at ); Matter of Edwards, supra at. When exercising discretion in a cancellation of removal case, positive factors to be considered include, but are not limited to, family ties in the United States, residence of long duration in this country, evidence of hardship to the applicant and his family if removal occurs, a history of employment, existence of property or business ties, proof of genuine rehabilitation if a criminal record exists, and other evidence attesting to the applicant s good moral character. Matter of C-V-T-, supra at ; Matter of Edwards, supra at ; Matter of Marin, supra at -. Adverse factors to be considered include the nature and underlying circumstances of the removal ground at issue and any other evidence that could be indicative of an applicant s bad character or undesirability as a permanent resident of this country. Matter of C-V-T-, supra at ; Matter of Marin, supra at. Here, Mr. Doe s positive equities are substantial. Some outstanding equities include long residence in the United States and the existence of United States citizen family. Matter of Arrequin, I. & N. Dec. (BIA ). Although Mr. Doe is a citizen of Mexico, he has established a home here in the United States. Mr. Doe entered the United States as a lawful permanent resident in. From the beginning, Mr. Doe embraced his adopted home and has worked hard to be a positive and contributing member of his community. See Tab D ( I have -

5 1 1 1 come to know [John] as funny, responsible, helpful and proud father of. He always has a kind word to say and always has provided a helping hand. ) Moreover, Mr. Doe s close-knit extended family is here in the United States and would suffer hardship were he to be removed. See Tab D. ( he is a caring individual and is always seeking ways to help out, and if he doesn t have the solution, especially if it s a financial situation he won t mind sharing his savings to help out when someone s in need. I see my brother as a person whom has fallen real hard and struggling to find his way back. ) ( John has always been a responsible father when it comes to his children Although John and Ludy did not remain together as a couple they have never disagreed that the most important thing is to make sure that both their kids have what they need ); See also Salcido-Salcido v. INS, 1 F. d 1 (th Cir. ) (separation from the family may be [t]he most important single [hardship] factor. ) Mr. Doe is a well loved and much needed member of his family. See Tab D. Mr. Doe s family is here in the United States and want to see Respondent remain with them in the United States. Id. Mr. Doe s excellent work history and filing of taxes warrants a favorable exercise of discretion and a grant of a waiver of removal. See Tab E. Mr. Doe has a long history of working hard to help his family and has employment waiting for him when released. Supra. ( John Doe was on track to being offered permanent full-time employment at The Ranch Winery. We were satisfied with his work performance and would be pleased to have him back when he is legally able to do so. ) Respondent has lived in the United States for a long time and has established strong ties to the United States and an excellent work history. Respondent is a hardworking lawful -

6 1 1 1 permanent resident that is part of a close-knit American family. Respondent s positive equities warrant that this court exercise favorable discretion and grant waiver of removal. Upon a balance of considerations, Respondent s positive equities are at least as favorable as Board precedent. Respondent has established at least as positive equities as other noncitizens that were granted relief under similar forms of relief. In Matter of C-V-T-, the Respondent was convicted for a drug felony under section.1.0 of the Alaskan Statute. The Board determined that respondent s seven years of residency in the United States, evidence of rehabilitation and a distant brother in California who respondent had not been in touch with for many years were significant equities warranting favorable exercise of discretion. Matter of C- V-T-, supra at 1. In the present case, Mr. Doe has significantly closer family ties than a distant brother. Furthermore, Mr. Doe has resided in the United States for a far longer period of time than the respondent in C-V-T- could claim. In another example, the Board in Matter of Arrequin, I. & N. (BIA ), granted deportation relief under INA (c) despite a conviction for importing. kilograms of marijuana. A close reading of Arreguin reveals similar positive equities (close family ties and acceptance of responsibility.) As such, a favorable exercise of discretion is warranted. C. Mr. Doe Is A Person Of Good Moral Character And Therefore Warrants A Favorable Exercise Of Discretion. Inherently in cases involving cancellation of removal for certain lawful permanent residents there will be acts of crimes involving moral turpitude. Here, Mr. Doe has numerous criminal convictions, including several driving under the influence convictions. Indeed, [i]t -

7 1 1 1 appears that Mr. Doe s problems and reasons for detention are largely due to substance abuse Tab C. Nevertheless, an applicant for a waiver may still establish good moral character. Mr. Doe has presented overwhelming documents showing he is a dutiful son and giving family member, and a hard and responsible worker. See Tab D ( he is a caring individual and is always seeking ways to help out, and if he doesn t have the solution, especially if it s a financial situation he won t mind sharing his savings to help out when someone s in need. I see my brother as a person whom has fallen real hard and struggling to find his way back. ) Such traits demonstrate Mr. Doe s good moral character. Moreover, and perhaps more importantly, Mr. Doe has shown a real desire to turn his life around and is very sincere about doing everything in his power to turn his life around be becoming clean and sober if he is allowed to remain in the United States. Tab C. Indeed, a social worker has been visiting John Doe at West County Detention Facility on Fridays for nearly the past three months During this time I have been impressed with Mr. Doe s desire to turn his life around. He has been regularly attending the D.E.U.C.E. program, and due to his own initiative has been accepted into long term ( to 1 months) residential substance abuse rehabilitation programs upon release. he is very sincere about doing everything in his power to turn his life around by becoming clean and sober if he is allowed to remain in the United States. Because Mr. Doe presents real, tangible and sincere rehabilitation, this Court should grant this application for cancellation of removal. IV. CONCLUSION -

8 1 1 1 For all above reasons, this Court should find Respondent statutorily eligible for cancellation of removal under INA 0A(a) and warrants favorable exercise of discretion because Respondent s positive equities outweigh his adverse factors. Dated this th day of February 1 Respectfully submitted, Jeremiah Johnson Johnson & McDermed Counsel for Respondent -